Askins v. United States of America et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
ZACKERY J. ASKINS, )
)
Plaintiff, )
)
v. ) Case No. CIV-25-1159-JD
)
UNITED STATES OF AMERICA, )
et al., )
)
Defendants. )
REPORT AND RECOMMENDATION
Plaintiff Zackery J. Askins, proceeding pro se, seeks redress against the United
States under the Federal Tort Claims Act. Doc. 1. He also filed an Application for Leave
to Proceed in Forma Pauperis (“Application”), Doc. 2, and an amended Application for
Leave to Proceed in Forma Pauperis (“Amended Application”), Doc. 5, which were
referred to the undersigned Magistrate Judge in accordance with 28 U.S.C. § 636(b)(1)(B)-
(C). After review, the undersigned recommends that the Court deny the Application and
Amended Application.
I. Background
On October 9, 2025, the Court explained that Plaintiff’s Application was deficient
as the financial information accompanying it was out of date and, therefore, not in
compliance with 28 U.S.C. § 1915(a)(2). Doc. 4 at 1. The Court ordered Plaintiff to cure
the deficiencies by filing an amended application not later than October 30, 2025. Id. at 2.
To facilitate Plaintiff’s compliance with the Order, the Court also ordered the Clerk of
Court to send a copy of the Order to the facility having custody of Plaintiff. Id.
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Plaintiff timely submitted his Amended Application for filing, and it includes the
required financial information. Doc. 5 at 3-4; Doc. 5-1 at 1-2.
II. Analysis
Petitioner’s Amended Application includes a statement from an official of his
custodial institution that, during the past six months, the average monthly balance of
Petitioner’s institutional account was $1,310.10 and the average monthly deposit was
$551.69. Doc. 5 at 3-4. Petitioner is also shown to have a sum of $2,523.26 in his account
as of October 20, 2025. Doc. 5 at 3; see also Doc. 5-1 at 2. As such, the undersigned finds
that Petitioner is financially able to prepay the $405.00 filing fee for this proceeding.
Because Petitioner has not shown that he qualifies for authorization to proceed without
prepayment of the filing fee, Petitioner’s Application and Amended Application should be
denied. See Lister v. Dep’t of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005) (noting that
“to succeed on a motion to proceed [in forma pauperis], the movant must show a financial
inability to pay the required filing fees”); 28 U.S.C. § 1915(a)(1).
III. Recommendation and Notice of Right to Object
For the foregoing reasons, the undersigned recommends that the Court DENY
Plaintiff’s Application for Leave to Proceed in Forma Pauperis, Doc. 2, and amended
Application for Leave to Proceed in Forma Pauperis, Doc. 5. The undersigned further
recommends that if Plaintiff does not pay the $405.00 filing fee in full to the Clerk of Court
within 21 days of any order adopting this Report and Recommendation, that this action be
dismissed without prejudice to refiling, pursuant to Local Civil Rule 3.3(e).
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Plaintiff is advised of his right to object to this Report and Recommendation. See
28 U.S.C. § 636. Any objection must be filed with the Clerk of Court by November 25,
2025. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to object timely waives
the right to appellate review of the factual and legal issues addressed in this Report and
Recommendation. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned
Magistrate Judge in this matter.
ENTERED this 4th day of November, 2025.
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